Breyer: Madison wrote 2nd Amendment to appease the states

posted at 10:12 am on December 13, 2010 by Ed Morrissey

It’s not just the Constitution that is a “living document,” as Supreme Court Justice Stephen Breyer proved yesterday when discussing the Second Amendment. Breyer argued that James Madison only included the right to bear arms reluctantly, and only because the states wouldn’t sign the Constitution for fear of creating an overmighty central government. That’s why he voted against the majority in the Heller decision that overturned the federal handgun ban in Washington DC:

Appearing on “Fox News Sunday,” Breyer said history stands with the dissenters in the court’s decision to overturn a Washington, D.C., handgun ban in the 2008 case “D.C. v. Heller.”

Breyer wrote the dissent and was joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg. He said historians would side with him in the case because they have concluded that Founding Father James Madison was more worried that the Constitution may not be ratified than he was about granting individuals the right to bear arms.

Madison “was worried about opponents who would think Congress would call up state militias and nationalize them. ‘That can’t happen,’ said Madison,” said Breyer, adding that historians characterize Madison’s priority as, “I’ve got to get this document ratified.”

Therefore, Madison included the Second Amendment to appease the states, Breyer said.

“If you’re interested in history, and in this one history was important, then I think you do have to pay attention to the story,” Breyer said. “If that was his motive historically, the dissenters were right. And I think more of the historians were with us.”

That’s a mighty big if, and it depends on ignoring the entire context of colonial life. The founders didn’t envision government on any level being able to utterly secure public safety, not even in the cities. Families needed guns for self-defense, and not just on the frontier from animals and hostile Native Americans and French and Spanish explorers, either. Then, as now, if families waited for the local constabulary to protect them from thieves and marauders, they’d find themselves either dead or homeless in short order.

Madison also considered the right to bear arms an important check on federal power, too, and didn’t reluctantly come to that position to appease the states into signing the Constitution. All Breyer needed to do to discover this was actually read Madison on the subject in Federalist 46, where Madison makes clear the role of states and men at arms in keeping the central government from overwhelming their sovereignty, emphases mine:

The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.

The argument under the present head may be put into a very concise form, which appears altogether conclusive. Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people.

On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them.

That doesn’t sound at all like a man who had to reluctantly guarantee that Americans would have those arms at hand in the extremity of need. Indeed, Madison makes his case poetically clear that the individual liberties the Constitution guaranteed against federal incursion were in fact guaranteed by the Second Amendment. Breyer’s argument is fanciful at best, and self-serving to an inordinate degree.

But there’s another point here: Who cares what Madison’s intent was? Who cares why the Second Amendment was added? Who cares what the motivation for its inclusion was? It’s there.

Is Breyer now saying that judges, including the Supreme Court, can ignore rights specifically guaranteed in the Constitution based upon the motivation for their inclusion? That judges can decide explicit rights don’t exist because they weren’t included in good faith? Wow.

To say that’s a dangerous precedent is probably the biggest understatement on this blog. That would mean a judge could decide you no longer have the right to free speech or freedom of the press because, hey, those rights were only included to appease one group needed for ratification.

There is a difference between treating a constitution of any form as a philosophical statement and as a legal document. The former is open for interpretation, while the latter should be used textually in order to make compliance and enforcement plain. We have always considered the Constitution to be the foundational legal document of the United States, and that’s how the court should use it as well. The Second Amendment, and everything else that’s in the Constitution, should be assumed to mean what it says, and if Congress and the states find that problematic, then they can amend it through the processes the Constitution prescribes for that purpose.

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Who says? Is there a definition for ‘arm’ in the Constitution that I’m missing? I mean, it’s supposed to be clear and I keep getting all these different, shifting responses from you guys.

Think of it this way, a tank is not a bearable arm. I understand that you are trying to say that there should not be a personal right to guns because supposedly the term “arm” is unlimited, but that’s just not how the courts have interpreted the word. Also from Heller: “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding”.

Women are less politically powerful than men. That’s just the way it is. That could change in the future, but as of now I don’t think their interests can be adequately protected by democratic mechanisms.

How does the AZ law restrict minority rights for legal citizens and legal immigrants?

ladyingray on December 13, 2010 at 12:06 PM

1) Aliens are a minority who are unable to protect themselves politically, because they can’t vote. 2) Th decision didn’t necessarily prevent citizens from enacting similar laws through democratic means, it just says they need to do so through the federal rather than state government.

Is it? If the feds were armed with nothing but sharp sticks would you feel that having a bow would be unfair escalation beyond the scope and intent of the 2nd amendment?

The Second Amendment says the right to keep and bear arms shall not be infringed. I read that as saying I should be able to keep and bear arms, period. Any arms. Whatever’s an “arm”, I should be able to keep.

I know you are trying awfully hard to create a loophole into which any semantic truck can be driven, but the Founders weren’t going to put together a million-word amendment to satisfy those such as yourselves. You could just as well deconstruct any parts of the Constitution or the BOR to the same degree, but YOU won’t.

You’re right! They didn’t write the Bill of Rights very specifically! It’s pretty vague in some spots and THEREFORE, it’s not very clear, is it?

The Founders differentiated between the “Army,” the “Navy,” the “Militia,” and the “people.” Army and Navy were Federal constructs; Militia were the independent State constructs (as in individual states of the Union); and the people were every and all Creator-made individuals.

How is it possible to confuse the extremely clear wording in the 2nd Amendment even disregarding the historical context of just having fought tyranny in the manner in which it happened? Yeah, rhetorical. Obviously, it isn’t!

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The people have that right – not the Miltitia except as secondary and subservient to the people.

Where is that in the Constitution? Nowhere? OK. I find it pretty amusing that the argument is now, apparently, that people are to keep and bear arms to defend themselves against tyranny, and the government gets to have all the good weapons and you get to have a handgun. Good luck fighting that fight. Also kind of incredible when you consider that the Second Amendment actually specifically refers to a well-regulated Militia and says NOTHING about a citizen’s self-defense. Remarkable all the new and interesting stuff we’re now reading into the Constitution.

Proud Rino on December 13, 2010 at 12:06 PM

Arms is in the Constitution. You brought it up, remember? Ordnance is NOT in the Constitution. Are you trying to argue that you can’t substitute the meaning for arms for the word arms?

I personally don’t see why we’d need to make that distinction. But there’s evidence that the people of the day did make a distinction between cannons and rifles. From Constitution.org:

When it was adopted, “arms” included muzzle-loaded muskets and pistols, swords, knives, bows with arrows, and spears.

What question? You’re just engaging in the usual pseudo-clever sophistry: If people can’t own a nuclear device, then they don’t have a Second Amendment right to ANY sort of weapon. That’s like saying that since I can’t have access to any and every federal document I can’t have access to ANY books or periodicals.

The best argument was presented by another commenter, the ability to discriminate between the innocent and the criminal, to keep from harming an innocent’s right to life and liberty while protecting yourself.

Proud Rino, it’s ok to start with the premise that all citizens have the right to own any type of weapon they want.

If you don’t like that, then you can try to reach a compromise by requesting that certain weapons (maybe starting with NBC) are limited. There are plenty of 2nd Amendment advocates that will agree to compromise.

Where will the line be drawn? I don’t know. But the argument made by 2nd Amendment advocates certainly isn’t negated just because they are willing to compromise on this issue.

It sounds like they are getting ready to find a loophole in the Constitution to ban guns – like they did with Jefferson’s letter “finding” a separation between church and state that was never mentioned in the Constitution.

Kelo stripped us of our property rights and we can be illegally searched in airports. Not much left to that poor old tattered document, is there?

Im speechless that this pseudo intellectual back bencher would try and justify his hatred for this part of the Constitution by attempting to read James Madison’s mind.

Only a progressive can replace logic and thoughtfulness with imaginary feelings and be considered “intelligent” by his peers. This man doesnt deserve to sit on the panel of judges that picks Miss America let alone the Supreme Court. He is an embarrassment and a phony.

Founders, like Madison, would be sickened by Breyer sitting on the Supreme Court. Intelligent just doesnt mean what it used to….

There used to be a place near my house where the guy would give rides in his T-34, it was called tankride.com and it was a hoot. He had a propane system hooked to the main gun that fired a charged bolus of ignited propane; looked and sounded almost like the real thing.

$80 to ride around for a half hour in a T-34 while he drove, smashing old cars and swiveling the turret around to attack bunkers, it was awesome.

Hmmm.
What you say conflicts with the history I’ve read and heard.
We both need to do more research, but I’m fairly sure that we were indeed their most profitable colony and I know for a fact that they sent the largest armada in the history of the world to NY harbor to frighten Washington and the Continental Army.

Jenfidel on December 13, 2010 at 12:09 PM

Agreed. I recently finished reading Thomas Fleming’s “The Perils of Peace” about America and England just after Yorktown. The period after Yorktown is really under-reported, I think. But it’s always dangerous to put all of your stock in a single author.

You’re just engaging in the usual pseudo-clever sophistry: If people can’t own a nuclear device, then they don’t have a Second Amendment right to ANY sort of weapon. That’s like saying that since I can’t have access to any and every federal document I can’t have access to ANY books or periodicals.

ddrintn on December 13, 2010 at 12:07 PM

I didn’t make that claim.

Proud Rino on December 13, 2010 at 12:13 PM

That’s exactly the claim you’ve been making – unless of course you really do believe that the 2nd includes all weapons.

Follow the link I posted and spend some time perusing the extensive research. That is if you are truly looking for your question to be answered.

I believe the framers were using their own day’s wording so that the average citizen of that time could instantly understand their meaning. I refuse to believe that they would sloppily use confusing terms. Understanding what these terms meant at the time of the ratification is the only path to understanding the bill of rights.

“Im speechless that this pseudo intellectual back bencher would try and justify his hatred for this part of the Constitution by attempting to read James Madison’s mind.” Bryer has always believed in amending the constitution through judicial fiat rather than the amendment process. That’s the reason he supports selectively looking to foriegn laws in interpreting the constitution. He is essentially authoritarian.

If Madison had an opinion on that issue contrary to that of the majority, which I admit I don’t know, he would have kept his mouth shut about it. Going against the popular morals back in those days could mean anything from near-total social ostracism to being boycotted by local merchants.

You can buy a tank if you want, go online and you will find them for sale. The best place to get one is Russia or the old old USSR satellites, they have old tanks coming out of their ears; good luck with shipping though.

Bishop on December 13, 2010 at 12:10 PM

Hey hey HEY! Don’t you dare bring in the implications of fiscal inability for Joe Bob Hickmaster to go out and buy something that will scare the living bejeezus out of your typical anti-gun statist! Might invalidate their whole elitist justification for nullifying the Second Amendment!

Women are less politically powerful than men. That’s just the way it is. That could change in the future, but as of now I don’t think their interests can be adequately protected by democratic mechanisms.

crr6 on December 13, 2010 at 12:11 PM

a) Aren’t women in the majority in America?

b) So there are circumstances under which democratic mechanisms are insufficient? What would you rely on? Written law?

I recently finished reading Thomas Fleming’s “The Perils of Peace” about America and England just after Yorktown. The period after Yorktown is really under-reported, I think. But it’s always dangerous to put all of your stock in a single author.

hawksruleva on December 13, 2010 at 12:19 PM

Thanks for the tip! I plan to check it out. Love to read about our nation’s founding! :-)

Breyer in his clairvoiant explanation of Madison’s thoughts sounds like a revisionist historian if ever there was one. Breyer voted as to how he wanted things to be and then conjured up some of Madison’s doubts and fears just to lend creedence to his (Breyer’s) crackpot opinion.

As I’ve said, the willingness of 2nd Amendment advocates to compromise on the definition of an arm doesn’t negate their argument.

Exactly.

The right to bear arms doesn’t mean it’s an unlimited right. The right to free speech doesn’t mean it’s unlimited either.

There are limits to all of our rights.

Now that the fundamental right for an individual to own a firearm is recognized, the question now is what limits can the state place on that right. Before Heller, the Court never recognized that right and so the limits have never been drawn.

“The purpose of the Second Amendment is not to repel foreign invaders, but to assure the ability to overthrow the government if it ceases to be a government run for and by the people”. — Thomas Jefferson.

Women are less politically powerful than men. That’s just the way it is. That could change in the future, but as of now I don’t think their interests can be adequately protected by democratic mechanisms.

crr6 on December 13, 2010 at 12:11 PM

I’m not sure that’s true, especially when you consider that we are a majority in this country. Democratically speaking, we have an edge. What do you think we’re still missing in order for the inequalities you perceive to disappear?

Women are less politically powerful than men. That’s just the way it is. That could change in the future, but as of now I don’t think their interests can be adequately protected by democratic mechanisms.

crr6 on December 13, 2010 at 12:11 PM
a) Aren’t women in the majority in America?

b) So there are circumstances under which democratic mechanisms are insufficient? What would you rely on? Written law?

Hmmm.
What you say conflicts with the history I’ve read and heard.
We both need to do more research, but I’m fairly sure that we were indeed their most profitable colony and I know for a fact that they sent the largest armada in the history of the world to NY harbor to frighten Washington and the Continental Army.

Jenfidel on December 13, 2010 at 12:09 PM

What you don’t know about a wide range of subjects could fill a mothereffing warehouse. God you’re an annoying twit.

But none of our rights are absolute. The same applies to the Second. It’s not absolute.

For example, the First Amendment says that we have freedom of religion. But that doesn’t mean we can engage in human sacrifice. It’s a limited right.

The Free Speech clause guarantees us the freedom of speech. But that doesn’t mean we can defame people or falsely cry fire in a theatre or a hundred and one other limits. It too has limits.

The Second guarantees us the right to bear arms. That doesn’t mean any arms. We make distinctions, draw lines as to what is permitted and what is not.

The Second – like the First – is limited.

SteveMG on December 13, 2010 at 12:21 PM

The First Amendment talks of using speech, religion, the press; and assembling, and redressing grievances. All these are “use”. The Second Amendment is the simple, benign and innocuous keeping and bearing of arms. No use of arms is included in the protections of the Second Amendment. The Second Amendment IS absolute. No harm comes to anyone from the keeping and bearing of arms by anyone. The Second Amendment is written in absolute terms, and for good reason – it protects access to the tools people need to defend themselves, our cities and towns, and the nation.

Again, the difference is in “use” verses “keep” and “bear”. You have the right to keep and bear language, the right to keep and bear math skills, thoughts, vision, hearing and etc. As an example, it’s all in how you USE language that can cause harm such as libel, slander, purgery, etc. It’s all in how you USE arms that can cause harm. A law that says you can’t discharge guns in the middle of town except in self defense is constitutional, but a law that says you cannot carry an arm in downtown is unconstitutional.

The so-what argument of the Pundit is correct to a point. We need to care about opinion outside of law, and historical application of the law in the first years it stood, because of semantics

Many Americans no longer share a common understanding with the people of the colonial era on the meanings of various words used in law, and in opinions. So law, and opinion are quoted and arguments made using clever semantics to imply we share common definitions of what we are arguing about.

The word ‘militia’ is used by modern gun controllers to mean the authorized US Army, State National Guard or the various reserves, with additional members added if there is conscription, or deputizing or otherwise swearing in by oath.

So only authorized militia need apply for guns

The NRA has some good books tracing the understanding of ‘militia’ back to Kings of England requiring men of the lower classes to hold arms, and maintain skills should a larger army be required. In the colonies, there was an understanding you can see in Madison’s writings the militia is simply a populace united in purpose and thankfully armed well enough to defeat threats to their common goals

To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.

This ‘militia’ did not have to be enlisted in the National Guard, and those who did not choose, for instance to join Washington’s army (with their own weapons) before the nation was founded were not summarily disarmed.

The history is very clear, but the semantics is not, mainly because there has been a steady propaganda campaign to change the meanings of the words we use in our lives to suit the agenda of those who do not like America as created

To the older folk out there, who remember television like Walt Disney’s Davy Crockett series, was there any sense in that era, or any sense from program’s like Disney’s back then, that Davy Crockett had gun issues, and was abusing the Second Amendment?

Media has been used to re write our language in a direct attempt to subvert America culture. Unarmed liberty is the liberty of fools

It all makes sense when you start from the philosophy of “what I like is in the constitution, what I don’t is not” and then apply it whenever and wherever. And, of course you can always find precedent b/c there have been enough liberal activist judge’s who have applied this philosophy. Why, just announce an emmanation from a penumbra and voila – the constitution says what you want it to say!

Which is to say, liberals like crr6 simply don’t have any use for the constitution as it is written.

Gee, that must be why my university awarded me 3 degrees, 2 of them Masters.
And my education has only increased since I left formal schooling.
Nice personal attack, though.

Jenfidel on December 13, 2010 at 12:53 PM

I think you’re an intellectually dishonest phony. A feckless clown. BTW, I’ll see your claimed 2 Masters degrees, and raise you a Phd and a JD (both from one of the finest institutions of higher learning in the world). And for the record, watching the Glenn Beck show every day does not qualify as continuing your education.

I think you’re an intellectually dishonest phony. A feckless clown. BTW, I’ll see your claimed 2 Masters degrees, and raise you a Phd and a JD (both from one of the finest institutions of higher learning in the world). And for the record, watching the Glenn Beck show every day does not qualify as continuing your education.

dakine on December 13, 2010 at 1:05 PM

I didn’t attack your intellectual bona fides.
In fact, I don’t care what degrees you have.
And I despise Glenn Beck and think he lies about a lot.

See? Boasting about your accreditation on the internet doesn’t mean much, and even if it’s true, certification does not indicate intelligence.

MadisonConservative on December 13, 2010 at 12:59 PM

I’m not boasting–I earned those degrees.
But my formal schooling didn’t limit or stop my personal education either.
Knowledge and learning are available to anyone with the right spirit and I try to add to it every day.

Women are less politically powerful than men. That’s just the way it is. That could change in the future, but as of now I don’t think their interests can be adequately protected by democratic mechanisms.

crr6 on December 13, 2010 at 12:11 PM

What? Women have less right to vote than men???

Or do men have some other type of political power in this country that I’m not aware of?

It’s a legitimate question. If the intent of the amendment is to allow self-protection by use of arms, then any arms which facilitate said self-protection should be allowed, right?

I submit that if you read the 2nd Amendment as-is, you get a right to bear any arms your state allows you to bear, and that includes nuclear weapons. Now, that right has been modified by the 14th Amendment to make the Federal Government your guarantor of the right to bear arms (if you don’t believe me, walk up to any black gunowner [they are common in the South] and ask about the juxtaposition of the 2nd and 14th). The Feds don’t want you to have nukes, or machine guns, or tanks, or warships, or cruise missiles, or any other WMD, so those of us who are law abiding don’t — as we understand why such restrictions are levied upon us.

Long gone are the times when the citizenry were armed equivalently to the government, so the “militia” claims to be training against a tyrannical Government fall on deaf ears over here. I’m far more afraid of an automatic rifle wielded by a militia member than the Government.

woodcdi on December 13, 2010 at 12:46 PM

I submit that the difference in language is due to the fact that a gun, unlike the printing press, is dangerous in the mere fact of its existance. A gun is designed to kill things, while a press is designed to duplicate ideas. Why is “freedom of the press” expressed the way it is, but “freedom of gun” not? We don’t allow 11-color printing presses to be borne down the sidewalks of our city, but we do allow guns — at least in most Constitution-abiding places. I think the “keep and bear” clause is designed to prevent the government from saying: (a) you can carry your gun in public, but you must lock it up with us in the armory when not in use, or (b) you can keep the gun at home but you cannot carry it in public, or even (c) you must keep your gun in our armory. Since arms (guns, bows, spears, swords, cannon) were, at the time of the Framing, portable, and presses were not, the intent can be more easily expressed with regard to use of the press than with use of the gun. Hence the more specific language in the 2nd Amendment.

The prohibition against large arms such as nukes and missiles and machine guns is more recent — the Framers obviously didn’t mind that private citizens owned warships — hence Article I’s allowance of the issuance of Letters of Marque and Reprisal. A warship, public or private, would have been armed with the most advanced naval weaponry of the day.

A lot? Then it should be easy to cite several examples where you caught him dead to rights. Please share.

Akzed on December 13, 2010 at 1:13 PM

He’s lying about being a Christian…and it goes downhill from there.
And should I buy a year’s worth of food from foodinsurance.com because the economy’s going to completely collapse immenently, as Glenn says?